THE SYSTEMATIC REPRODUCTION OF A SECONDARY NATURE ELEMENTS WITH RESPECT TO THE OVERALL SHAPE OF THE PRODUCT INTEGRATE A HYPOTHESIS OF PARASITIC COMPETITION, PURSUANT TO ART. 2598 No. 3 OF THE ITALIAN CIVIL CODE
With decision of 22 October 2020, the Court of Milan, Business Division, ascertained that the conduct carried out by the defendant companies, active in the production and marketing of products in the footwear sector, create acts of unfair competition, pursuant to the art. 2598 n. 3 of the Italian Civil Code to the detriment of the plaintiff company, assisted by LGV.
The matter in question begins with the establishment by a well-known footwear and fashion manufacturer of a precautionary judgment pursuant to Articles 126, 131 and 133 c.p.i. and pursuant to art. 700 of the Italian Civil Code, upon which almost all the requests for injunctions formulated by the then appellant were accepted, with an order partially confirmed in the subsequent complaint phase.
The decision comes at the end of the proceedings on the merits with which the Court of Milan confirmed the findings in the precautionary stage, namely the presence of some elements on the defendants’ footwear and their suitability to produce a confusing effect. Indeed, during the proceedings it was proved that multiple elements present in the plaintiff’s shoes are replicated in the defendants’ products and that such conduct, which takes the form of a systematic imitation of all or almost everything that the competitor does, must be considered contrary to the rules which preside over the ordinary course of competition. According to the Court of Milan, this systematic imitation constitutes “an unfair competitive practice because the plurality of conduct gives rise to a unitary offense integrating a continuous and structured exploitation of the work of others, which can take place chronologically both subsequent acts imitating the initiatives and products of others through a series of simultaneous behaviors that can all be considered and manifested univocally and in a significant quantity as aimed at the pursuit of the same illicit purpose”.
On the basis of this premise, the Court of Milan, in partial acceptance of the defendants’ claims, founded the final injunction order to the detriment of the defendants, also ordering the withdrawal from the market of the products at issue and imposing a penalty for each violation. or non-compliance or delay in the execution of the order. The Court therefore remitted the case to be investigated for the quantification of the damage.